Tokalau v State [2017] FJCA 183; AAU0004.2015 (17 October 2017)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court of Fiji]

CRIMINAL APPEAL NO. AAU0004 of 2015
[High Court Case No. HAC099 of 2013]

BETWEEN:

SAKIUSA TOKALAU
Appellant

AND:

THE STATE
Respondent

Coram: Hon. Mr Justice Daniel Goundar

Counsel: Mr S Waqanaibete for the Appellant
Mr Y Prasad for the Respondent

Date of Hearing: 11 October 2017

Date of Ruling: 17 October 2017

RULING

[1] Following a trial in the High Court at Suva, the appellant was convicted of one count of rape and three counts of sexual assault. On 19 November 2014, he was sentenced to 12 years, 6 months imprisonment with a non-parole period of 10 years. This is an application for leave to appeal against conviction only pursuant to section 21(1) of the Court of Appeal Act 1949. Section 33(1) of the Court of Appeal Act 1949 gives a single judge power to grant leave. The test for leave is whether the appeal is arguable before the Full Court.

[2] The initial Notice of Appeal that was filed in person by the appellant is dated 10 December 2014. However, by the time the registry received the notice from the Department of Corrections in January 2015, the appeal was late by about one month. Since the appellant gave his notice within time and is at no fault for the late filing of the appeal, I grant an extension of time and treat this application as a timely application for leave to appeal.

[3] The grounds of appeal are:

(i) The Learned Trial Judge erred in law when he did not properly consider the consistency of the Appellant’s evidence in relation to all the counts of charge more particularly on the count of Rape from the record of his interview to the evidence he said in the trial which makes him a very credible witness thus resulted in miscarriage of justice.

(ii) The Learned Trial Judge erred in law and in fact when he did not direct the assessors on the lateness of report to the police.

Facts

[4] The appellant was the victim’s stepfather. The victim was a juvenile. She was 15 years old. The first two charges were based on the same incident that occurred on 15 February 2012. The victim’s evidence was that the appellant came to her room at night and awoke her by touching her breasts. He removed her underwear and top and she felt something penetrating her vagina. She felt pain in her vagina He was dressed and she suspected that he used his fingers to penetrate her. She also gave evidence of earlier incidents of sexual assaults where the appellant had touched her breasts and had bit her neck. She said she did not consent to any of these sexual assaults.

[5] The caution interview of the appellant was led in evidence with his consent. Under caution, the appellant admitted kissing and touching the victim’s breasts, stomach and neck, but denied penetrating her vagina. In his evidence, the appellant admitted kissing and fondling the victim’s breasts on the night of 15 February 2012, but he denied penetrating the victim’s vagina. He also admitted that on previous occasions he had sexually kissed the victim with her consent.

Consistency of the appellant’s evidence

[6] Ground one alleges that the learned trial judge had not properly assessed the appellant’s credibility based on the consistency of his evidence and what he said to police in his caution interview.

[7] In the summing up, the learned trial judge fairly summarized all the relevant evidence including what the appellant said in his caution interview and what he said in his evidence. In his written judgment, the learned the trial judge found the evidence of the victim convincing, honest, and compelling. He believed the evidence of the victim. It was open on the evidence for the learned trial judge to believe the victim’s version as true and reject the evidence of the appellant.

[8] In any event, the evidence of the sexual assaults was overwhelming. The appellant did not dispute the sexual acts of fondling the victim’s breasts and kissing. It was open on the evidence for the trial judge to believe the juvenile victim that she had not consented to any of these sexual acts with her stepfather who was an authority figure in the house they lived. As far as the rape charge was concerned, it was open on the evidence to conclude based on the circumstantial evidence that the appellant had digitally penetrated the victim’s vagina without her consent.

[9] This ground of appeal is unarguable.

Late report of sexual abuse to police

[10] Ground two alleges that the learned trial judge should have directed the assessors to consider the late report of sexual abuse to police in assessing the credibility of the victim.

[11] The prosecution did not rely on complaint evidence to bolster the victim’s credibility. Complaint evidence was not led. There was no obligation on the trial judge to give direction on evidence that was not led at the trial. This ground is unarguable.

Result

[12] Leave refused.

The Hon. Mr Justice Daniel Goundar
JUSTICE OF APPEAL

Solicitors:

Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent